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[2009] ZAGPJHC 9
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Minister of Safety and Security v Howard (7002/04) [2009] ZAGPJHC 9; 2009 (5) SA 201 (GSJ) ; 2009 (2) SACR 536 (GSJ) (24 April 2009)
IN THE HIGH COURT OF SOUTH
AFRICA
WITWATERSRAND
LOCAL DIVISION
Case
No. 7002/04
In the matter between:
THE
MINISTER OF SAFETY AND SECURITY
Applicant
and
HOWARD,
MADELEIN
Respondent
JUDGMENT
Horwitz AJ
:
This application raises a rather
novel issue. The app
licant
seeks a declaratory order that the South African Police Service,
which falls under the control of the Ministry of Safety
and Security,
is entitled to claim compensation for the time that members of the
Police spend investigating hoax reports to the
Police, from persons
responsible for causing such reports to be made. The respondent in
the present matter is alleged to have been
such a person, albeit that
she did not make the report herself.
The applicant (to whom I will refer
as “the Minister”) was represented in the proceedings
before me by Adv PF
Louw
SC and there was no appearance on behalf of the respondent. Adv GC
Pretorius
SC appeared as
amicus
curiae
to present a
counter-argument to that advanced on behalf of the Minister. Whilst I
am indebted to both counsel for their invaluable
assistance, I must
express my special thanks to Mr
Pretorius
for the time and effort that he expended on the matter for no
remuneration at all.
After the terror attacks in New York
on 11 September 2001 (which in common parlance came to be known as
“nine eleven”)
,
when terrorists flew hijacked aeroplanes into the well-known World
Trade Centre, a number of fatal anthrax poisonings occurred
in the
United States of America. According to the allegations in the
founding affidavit, it became common knowledge that the medium
through which the anthrax bacteria were spread was white powder into
which the bacteria were mixed. The mixture was then placed
in
envelopes and when the envelopes were handled, the handler then
suffered anthrax poisoning. Over a period of time, there have
been
reports in South Africa of suspected anthrax poisoning having been
caused but upon investigation by the Police the reports
proved to
have been false.
On 24 October 2001, the respondent
placed an envelope containing white powder in a women’s toilet
located in the building
where she was then employed. The deponent to the founding affidavit,
one Charlene Britz, a senior legal
official employed by the South
African Police Service (and I interpolate to say that for present
purposes all the allegations in
the founding affidavit are accepted
as true), states that the respondent’s purpose in so doing was
to cause panic amongst
her colleagues, one of whom in fact discovered
the envelope and, believing that she had been a victim of anthrax
poisoning, suffered
severe nervous shock.
Needless to say, the incident was
reported to the Police and consonant with their duty to do so, they
dispatched members of the
Force to investigate the matter.
Of course they discovered that this was all a hoax, but only after
valuable time and effort had been wasted on the call. The deponent
states further that the respondent must have realised that the Police
would be called in; the fact that that is so should be pretty
obvious, in the circumstances.
The deponent then proceeded to
adumbrate details of all the time and effort
that
the Police spent in investigating the false complaint and the
attendant costs. It is not necessary for me, for the purpose
of this
judgment, to embark upon an analysis of those allegations. The
essence of this application is that the Minister now wants
the Court
to declare that the respondent is obliged to compensate the Police
for all the time unnecessarily expended on investigating
this hoax
call.
Mr
Louw
cast the Minister’s claim in a number of possible moulds. He
submitted that the claim could be brought under the
lex
aquilia
or the
actio iniuriarum
,
both of which are regular delictual actions. In the alternative, he
submitted that the claim could be one for breach of a statutory
duty,
of the nature of that considered in
Lascon
Properties (Pty) Ltd v Wadeville Investment Co (Pty) Ltd
1
.
Lastly, he submitted that the claim could constitute one for
constitutional damages (as to which, see
Fose
v Minister of Safety and Security
2
)
.
I do not intend investigating or offering any comment on the latter
three. In my view there is no merit in any of them. The only
claim
that warrants attention is that based on the aquilian action.
(I interpose here to mention that Mr
Louw
did not like the use of the word “hoax”. With reference
to the Oxford Dictionary, he suggested that that word made
light of
the seriousness of what the respondent is alleged to have done. I do
not intend to investigate the etymology of that word.
I think that in
common parlance it has come to embrace also the type of act in issue
in this case and I will therefore use the
word in its pejorative
sense. There is sufficient authority for the proposition that that
type of conduct, misleading the Police
into believing that a crime
has been committed well-knowing the opposite to be true, constitutes
fraud. It could also constitute
the statutory crime of contravening
section 1
of the
Intimidation Act, No. 72 of 1982
or, even more
probably, a contravention of section 13(1) of the Protection of
Constitutional Democracy Against Terrorist and Related
Activities
Act, No. 33 of 2004.
3
There should therefore be no mistaking the seriousness of the
respondent’s alleged conduct and my use of the word “hoax”
to describe it.)
Mr
Pretorius’s
opening gambit was that the Minister’s argument was a novel
one. I have already stated that to be the position. The obvious
reason, however, that the Minister seeks the order which he does, is
that the Police want to send a firm message to potential wrongdoers
of the kind that the respondent is alleged to be, that hoaxes will be
met not only with a criminal sanction but also with the possibility
of liability for wasted expenses incurred by the Police in their
investigation of the hoax allegations.
At first blush, the claim has all the
makings of a valid delictual action. The respondent clearly acted
unlawfully. She clearly
foresaw that the Police would
unnecessarily
expend time and money because of her shenanigans. That was almost
like pouring money down the drain. The question
raised in this
application is whether, in principle, a claim by the Minister for
compensation for the loss allegedly suffered in
this manner is
sustainable in law. The gist of Mr
Pretorius’s
argument was that the Police are there for the very purpose of
investigating crime; in doing what they did in the present case
they
were merely fulfilling their function and doing the job that they
were appointed to do and that South African law has not
yet developed
to the extent that it recognises a claim for compensation of the
nature of that which the Minister asserts.
I must confess, upfront, that I am
taken aback at the notion that persons
responsible
for hoax allegations which have the effect of stretching Police
resources beyond the extent to which they are already
stretched,
should be able to get away with only a criminal sanction, where there
is one, and not be accountable for damage caused
by way of wasted
costs incurred by the Police in investigating what ultimately turns
out to be a hoax.
I
would imagine that all right minded persons would be seriously
affronted by such behaviour on the part of the respondent.
I would
imagine that their immediate reaction would be: of course she should
be held accountable for the lost time and effort and
that they would
react with horror if told that someone could get away without having
to lay out a cent to compensate the Police
for having wasted their
sparse resources and tax payers’ money. I doubt that such
persons would be content with the notion
that such wrongdoers only
incur criminal liability. It is no secret that Police resources are
stretched to the limit and are not
there to be squandered on this
type of irresponsible behaviour. There can be no legitimate excuse
for such behaviour.
I have
referred
to
“
a
criminal sanction where there is one
”
because it must be borne in mind that whilst the commission of a
criminal offence must be proved beyond reasonable doubt, with
the
result that the person alleged to be guilty of the hoax might be
acquitted, the commission of a delict in a civil case need
be proved
only on a balance of probabilities. Therefore, whilst the criminal
law might provide a remedy by way of punishment to
deal with hoaxers,
it does not cater for those cases in which the alleged hoaxer is
acquitted but nevertheless found on a balance
of probabilities to
have been guilty of the act complained of. If that were the case, it
would mean that a person who is shown
on a balance of probabilities
to have committed a crime by making a false report to the Police
would receive from the Courts treatment
different from, and better
than, others who are shown on a balance of probabilities to be liable
to compensate another party for
damages suffered by the latter.
Nevertheless, my personal indignation
is insufficient for me to hold that a person in the position of the
respondent is legally
liable for damages of the nature claimed in the
present case. Concomitantly, the potential for the alleged wrongdoer
to be held
criminally liable for the act complained of, should not
deter me from holding in favour of civil liability.
In support of his argument in favour
of liability on the part of the respondent, Mr
Louw
referred me to
Carmichele
v Minister of Safety & Security & another
[2001] ZACC 22
;
2001 (4) SA 938
(CC),
4
and submitted that if I found the common law to be deficient, I
should invoke sec 173 of the Constitution, which enjoins a court
to
develop the common law where necessary. For reasons which appear
below, I do not believe that it is necessary to do so.
If I understood
counsel
correctly, they approached the matter on the basis that the
Minister’s claim was one for pure economic loss. Whilst
it is
clear that a claim of that nature is sustainable,
5
I am not sure that that terminology really fits the Minister’s
claim in the present instance. Patrimonial loss is probably
a better
turn of phrase for it. I do not believe, however, that it is
necessary for me to attach a label to the claim. However
one
categorises it, the question remains: does the law recognise a claim
for compensation in the circumstances of this case?
A good starting point is
Herschel v Mrupe
1954 (3) SA 464
(A). The facts, briefly, were the following. The
plaintiff had wanted to institute action against an insurance company
under the
provisions of the Motor Vehicle Insurance Act, No. 29 of
1942, to recover damages that she had suffered as a result of a motor
collision in which her husband had died. Her attorney sought from the
owner of the other motor vehicle involved in the collision
(“X”),
the name of the insurance company by which X’s motor vehicle
had been insured. X’s attorney informed
the plaintiff’s
attorney that the name was S. In due course, the plaintiff sued S but
the information that X’s attorney
had supplied was incorrect:
X’s vehicle was not insured by S. The plaintiff then sued X for
recovery of the plaintiff’s
wasted costs in suing S.
The plaintiff’s claim was
dismissed, the Court having found that X had not been negligent in
providing the information and
that the plaintiff had not suffered any
foreseeable harm. The important point was that the claim was not
dismissed for the reason
that in principle, damages of that nature
were not claimable.
Rumpff
CJ, in
Administrateur,
Natal, v Trust Bank van Afrika Bpk
1979 (3) SA 824
(A), at 830
in
fine
pertinently
pointed this out, noting that the Appeal Court had not rejected such
a claim but had rather recognised its existence.
The learned Judge in
the latter case then went on to hold that a claim for pure
patrimonial loss was one recognised in South African
law.
6
At the other end of the spectrum is
the case of
Union
Government v Ocean Accident and Guarantee Corporation Ltd
1956 (1) SA 577
(A), in which the Court held that the rule of Roman
Dutch Law that a master is entitled to claim from a wrongdoer
compensation
for injuries to his domestic servant which result in the
loss of the servant’s services, should not be extended so as to
make the wrongdoer or his insurer liable to the employer of the
injured party, where the latter is not a domestic servant. The Court
held against the employer because the wrongdoer owed the employer no
duty of care. I do not believe that it can be said that the
facts in
the present case remotely approximate to those in this last-mentioned
case, which is therefore not authority against the
proposition for
which Mr
Louw
contends. In the present case, the wrong was not committed merely
against an employee of the Police: it was committed against the
Police as an entity.
As to whether the law recognises a
claim for compensation in the circumstances of this case
,
the test postulated in
Atlas Organic
Fertilizers (Pty) Ltd v Pikkewyn Gwano (Pty) Ltd
7
appears clearly to be satisfied. In that case, Van Dijkhorst J,
stated:
“
I
have come to the conclusion that the norm to be applied is the
objective one of public policy. This is the general sense of justice
of the community, the
boni
mores
,
manifested in public opinion.
In
determining and applying this norm in a particular case, the
interests of the competing parties have to be weighed, bearing in
mind also the interests of society, the public weal. As this norm
cannot exist
in
vacuo
,
the morals of the market place, the business ethics of that section
of the community where the norm is to be applied, are of major
importance in its determination.
Public
policy as criterion for unlawfulness in delict is well-known in our
law; it has the stamp of approval of our highest Court.
In
Minister
van Polisie v Ewels
1975 (3) SA 590
(A) at 597A the basis of liability was held to be
that:
“
...
die regsoortuiging van die gemeenskap verlang dat die late as
onregmatig beskou behoort te word en dat die gelede skade vergoed
behoort te word...
”
In
Suid-Afrikaanse
Uitsaaikorporasie v O'Malley
1977 (3) SA 394
(A) at 403 it was stated that public policy is the
norm used to determine whether
prima
facie
defamatory words were published lawfully. See also the decision of
this Division in
S
v A and Another
1971 (2) SA 293
(T) at 299C and
Universiteit
van Pretoria v Tommy Meyer Films (Edms) Bpk
1977 (4) SA 376
(T) at 387. (On appeal in the last-mentioned case
this aspect was not dealt with;
cf
1979 (1) SA 441
(A).)
This
norm for unlawfulness also has the support of a large body of legal
writers in South Africa; cf, eg, W A Joubert in 1958
Tydskrif
Hedendaagse Romeins-Hollandse Reg
at 111 - 112 and 1960
THRHR
at 43; Van der Merwe en Olivier
Die
Onregmatige Daad in die Suid-Afrikaanse Reg
(1976) at 60, 61; Neethling
Persoonlikheidsreg
at 69, 70; Van der Walt and Potgieter in 1978
THRHR
at 79 - 80 and 330.
Public
policy is not only an acceptable criterion for unlawfulness in delict
in South Africa but as has been shown is also the norm
applied in
determining whether competition is unlawful in other countries.
The
application of this criterion will accommodate a decision like that
in the
Post
Newspaper
case and those based on dishonesty with which it ostensibly is in
conflict. It will also render the elasticity required if this
branch
of the law is to develop as needed. It encompasses the various
manifestations of unlawful competition upon which issue has
been
joined in this case.
In
coming to this conclusion I have kept in mind the words of
learned
hand
J in
Spectator
Motor Service Inc v Walsh
139 F 2nd
809 at 823 (1944) (quoted in
1974
South
African Law Journal
408):
“
Nor
is it desirable for a lower court to embrace the exhilarating
opportunity of anticipating a doctrine which may be in the womb
of
time, but whose birth is distant.
”
As
I have indicated birth has been given without undue complications to
a healthy infant.
The
various actions of the defendants now have to be examined in the
light of public policy.
”
More extensive reference to the case
of
Minister van Polisie v Ewels
1975 (3) 590 (A) is called for. At 597A,
Rumpff
CJ stated:
“
Dit
skyn of dié stadium van ontwikkeling bereik is waarin 'n late
as onregmatige gedrag beskou word ook wanneer die omstandighede
van
die geval van so 'n aard is dat die late nie alleen morele
verontwaardiging ontlok nie maar ook dat die regsoortuiging van
die
gemeenskap verlang dat die late as onregmatig beskou behoort te word
en dat die gelede skade vergoed behoort te word deur die
persoon wat
nagelaat het om daadwerklik op te tree. Om te bepaal of daar
onregmatigheid is, gaan dit, in 'n gegewe geval van late,
dus nie oor
die gebruiklike "nalatigheid" van die
bonus
paterfamilias
nie, maar oor die vraag of, na aanleiding van al die feite, daar 'n
regsplig was om redelik op te tree.
”
The logic in both those case
,
with due allowance for the difference in the facts, is in my view
applicable to the present case.
But is that enough?
If
I have correctly understood the cases above, loss was not the issue.
In all of them, the plaintiff had suffered loss. The question
was
whether the law recognised a cause of action to compensate the
plaintiff for that loss. In the present case, we have what is
really
the converse. I have found, save for the question of loss or damage,
that all the prerequisites for a valid delictual action
are present.
My finding would
satisfy the element of wrongfulness.
The
question that I therefore now face is whether the Minister indeed
suffered loss and, if so, is the Minister entitled to claim
compensation for that loss?
As regards actual expenditure by the
Police in attending to the call, there seems
little scope to argue that such expenditure was not lost. The issue
on which counsel mainly focused attention was the salaries
of the
individual Police officers involved in the investigation of the
respondent’s hoax: does the time that they spent on
the cases
constitute a loss?
Mr
Pretorius’s
argument, as I understand it, is that the Police (whom the Minister
represents) have suffered no loss or, if they have, the loss
is not
of a kind of which the law takes cognisance. I have already stated
the gist of his argument, which is that in investigating
the
complaint, albeit that it might turn out to be a hoax, the Police are
merely doing their job for which they are employed and
for which they
are in any event paid.
Whether that argument is correct or
not (and I will comment more fully on it below) it does not address
the question whether the
Police
are entitled to be compensated for patrimonial loss suffered in
calling in other resources, wasting petrol in travelling
expenses and
the like. The Police would surely want their expenditure to be
well-spent on activities which have the potential to
yield a positive
result, not on activities which, from the outset, have no potential
for success but are merely doomed to failure.
Fortunately,
it does not befall me to decide whether the present state of our law
is such that the costs incurred by the Police
in investigating a
particular crime can be recovered from the perpetrator of a crime. As
I have already demonstrated, this case
concerns something different:
the costs which the Minister wants to recover from the respondent are
not the costs incurred by the
Police in investigating the crime which
she
is alleged to have committed in triggering the hoax call and in
bringing her to book: it is the
wasted
costs in investigating the hoax for which she was responsible.
8
As regards actual expenditure by the
Police,
I confess that
I have little difficulty in regarding this aspect of the matter
resoluble in favour of the Minister.
Regarding the salaries of the
policemen involve
d in
unnecessarily investigating the hoax, this is a difficult one. It is
not answered with reference to the “regsoortuiging
van die
gemeenskap”, which determines the question of unlawfulness.
This issue, I believe, is a factual one, answered (just
as in the
case of expenditure in the course of the investigation) with
reference to those circumstances which strictly indicate
whether the
Police suffered patrimonial loss or not.
As a matter of principle
,
I do not believe that the mere fact that the State employs the Police
and has to pay the salaries of members of the Force in any
event,
regardless whether they are physically occupied or not in carrying
out their functions, is sufficient reason to disallow
a claim for
compensation. The Police are not employed because of a whim that it
would be a good idea to have people on standby
to regulate traffic or
help unfortunate indigent individuals out of tight corners. The most
significant reason for employing Police
and having a Police Force is
in order for its members to curb crime, wrongful and unlawful acts
committed by people such as the
respondent is. If there were no
criminals there would be no need for a large body of policemen to
deal with crime. To advance the
argument that the State is in any
event obliged to pay the salaries of the Police, irrespective whether
or not the respondent and
like-minded individuals had committed any
crime, with the consequence that the commission of the crime adds
nothing to the cost
which the State incurs in paying their salaries,
is to ignore why the Police were employed in the first place. The
measure is pre-emptive.
It is because of the need to curb the
wrongful activities of criminals. Were a victim of a crime to employ
a private investigator
(for example) to recover stolen property,
surely that would be a cost recoverable from the perpetrator? It is
in some respects
comparable to one taking out an insurance policy
against some or other eventuality. That would not preclude the victim
of a theft
from claiming compensation from the thief for the value of
the goods. I cannot see the logic in allowing a criminal to escape
liability
for similar costs, merely because the costs were incurred
pre-emptively. The Police Force is there to protect society
generally,
not for the benefit of societal misfits who have created
the need for there to be a Police Force.
9
It
is
certainly correct to say that the Police would in any event have had
to pay the salaries of the individual policemen who were
charged with
the investigation of the subject matter of the respondent’s
hoax, regardless whether the respondent had or had
not performed the
act of which she is guilty. The fact remains, however, that she did
perform the act which resulted in the Police
being called out and
thereby committed a crime, which immediately justified the
pre-emptive measure of having a Police Force in
the first place. She
caused the Police to expend (and waste) time and energy as a result
thereof, separately from the cost incurred
in investigating the crime
that she committed. As I have indicated, I am not concerned with the
costs incurred in investigating
the crime which the respondent
committed, after the Police discovered that she had perpetrated a
hoax and was therefore guilty
of a crime.
Both counsel referred me to the law
in other jurisdictions, notably England, where the position is
regulated by statute. For obvious
reasons, those reference
s,
albeit interesting, are of no assistance in circumstances in which I
have to determine the common law on the subject. Mr
Pretorius
also referred me to the position in Zimbabwe, where the legislature
has created the statutory offence of making a false statement
to the
effect that an offence has been committed. For the same reason, I can
draw no assistance from that. He also referred me
to
S
v Bazzard
10
,
in which it was held that causing the Police to waste time and energy
does not constitute the crime of obstructing the Police
in the
exercise of their duties. That also does not assist me because it is
conceded that the respondent’s actions constitute
the crime of
fraud and also the other offences to which I have alluded above.
Whilst I recognise that a claim of
the nature of that which confronts me is not in all respects akin to
a claim for costs in a civil
case, some
limited
reference to a case on costs might not be wholly inapposite. Thus, in
Bester & Grové
v Benson
1980 (1)
SA 276
(C), a firm of attorneys had successfully sued the defendant
in a magistrate's court for professional services rendered. In the
bill of costs the attorneys had claimed amounts for taking
instructions. The instructions were those given by a partner in the
attorneys’ firm to a professional assistant in the same firm
who handled the matter and brought it to its final conclusion.
The
taxing master had disallowed the items on the ground that attorneys
cannot charge for taking instructions from themselves where
the firm
was involved as a litigant. In an application by the attorneys to the
Supreme Court for a review, the Court held that
if the work had
actually been done it could not be classed as unreal or fictitious
and there was no valid reason why the attorneys’
firm should
not be remunerated for the time and effort expended by the
professional assistant on the firm’s behalf.
11
I imagine that but for taking those instructions, the professional
assistant’s salary would in any event have been paid.
That,
however, did not debar the claim for the costs. The same argument can
conceivably be advanced (and I put it no higher than
that) in respect
of the salaries of the relevant Police officials involved in the
investigation.
The deponent to the founding
affidavit
has provided
details of what she contends is the value of the loss to the Police
in investigating the hoax. The loss is made up
of numerous items. The
amount of time that the various Police officers spent on the case has
been prorated to their salaries and
the resultant amount is one such
item. Fuel costs, motor vehicle wear and tear costs, consumables used
in removing the offending
envelope from the toilet, forensic costs in
examining the content of the envelope and a number of other items
make up the balance.
The total claim is R11 531,14.
Aside from the declaratory order
which the
Minister
seeks, he also wants judgment against the respondent for that amount.
Although the respondent has not contested the claim,
I do not believe
that I should accede to the request for a monetary judgment. The
claim is clearly one for damages and it is trite
that such claims are
not sustainable in motion proceedings. In any event, there is the
question of the reasonableness of the amount
claimed, as also the
vexing question whether the Minister would be entitled to any amount
in respect of the actual wages paid to
the various Police officers
whose time was wasted in investigating the hoax. The circumstances
may be such that the Minister is
entitled to compensation in respect
thereof; on the other hand, he may not. It may be that the Police had
to incur other expenses
as a result of the unavailability of the
particular Police officials to perform other tasks; likewise, that
might not have been
the case. I doubt that the actual wages of the
relevant Police officials, without more, would validly be an item in
the computation
of the damages to which the Minister would be
entitled, but without the expedient of evidence to clarify these
issues, I fear that
my making an award in these proceedings might
constitute a dangerous precedent and I prefer not to express any firm
view in this
regard. I do not believe that in declining to do so, I
will be causing the Minister an injustice because, as I understood Mr
Louw
,
the Minister does not intend in this case actually enforcing any
monetary award against the respondent. The Minister’s real
concern is the principle involved. For the same reason, the Minister
does not seek an award of costs. In the circumstances, I believe
that
the following declaratory order will serve the purpose:
South
African law recognises a claim at the instance of the Minister of
Police against any individual
(including the respondent in this case) who, by causing a false
report to be made to the Police that a crime has been committed,
causes the Police to suffer monetary loss as a result of its having
to spend time, effort and resources in investigating the content
of
the false report in the belief that the report was a genuine one
.
_______________________
A.J. Horwitz
Acting Judge of the High Court
Date of hearing : 21 November 2006
Date of judgment : 24 April 2009
Applicant’s counsel : Adv P.F. Louw SC
Instructed by : The State Attorney
(Johannesburg)
No appearance for the respondent
Amicus Curiae
: Adv
G.C. Pretorius SC
1
1997 (4) SA 578
(W) at 580G
et
seq
2
[1997] ZACC 6
;
1997 (3( SA 786
(CC) paras [61] to [75]
3
The relevant part of sec 13 provides as follows:
“
(1)
(a) Any person who, with the intention of inducing in a person
anywhere in the world a false belief that a substance …….
is, or contains, or is likely to be, or contains (
sic
–
should be “contain”) a noxious substance ……
-
(i) places that
substance, ……. in any place;
…….
is guilty of an offence.
”
4
See paras [33] to [36]
5
Administrateur, Natal, v Trust Bank van Afrika
Bpk
1979 (3) SA 824
(A)
6
See also
Indac
Electronics (Pty) Ltd v Volkskas Bank Ltd
[1991] ZASCA 190
;
1992 (1) SA 783
(A) at 789
7
1981 (2) SA 173
(T) at 188H. See also
Shell & BP South
African Petroeum Refineries (Pty) Ltd and others v Osborne Panama SA
1980 (3) SA 653
(D) at 659;
Lanco Engineering CC v Aris Box
Manufacturers (Pty) Ltd
1993 (4) SA378 (D) at 380G-J
8
I note,
en passant
,
that if the cost of investigating what turns out to be hoax is
recoverable from the perpetrator of the hoax (something which
I have
yet to decide) it would seem rather incongruous that the costs
should be recoverable from that person in those circumstances,
but
if what is reported is indeed not a hoax but a genuine report, then
nothing may be recovered from the person guilty of the
crime which
is the subject of the report. As I have said, this is something
beyond the scope of this judgment.
9
The subject is quite extensively dealt with in
LAWSA, Vol 7 (Second Edition) paras 41-43.
10
1992 (1) SACR 302
(NC)
11
Compare, however,
Texas
Co (S.A.) Ltd v Cape Town Municipality
1926 AD 467
at 488-489. The case is distinguishable on the facts.